EUROPEAN JOURNAL ON CRIMINAL POLICY AND RESEARCH

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EUROPEAN JOURNAL ON

CRIMINAL POLICY

AND RESEARCH

Volume 8 - 2000

KLUWER ACADEMIC PUBLISHERS

DORDRECHT/BOSTON/LONDON

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Editor-in-Chief J. JUNGER-TAS Managing Editor J.C.J. BOUTELLIER

Editorial Committee

H.G. VAN DE BUNT, Ministry of Justice, WODC, The Hague and Free University of Amsterdam, The Netherlands

G.J.N. BRUINSMA, NISCALE, University of Leiden, The Netherlands M. KILLIAS, University of Lausanne, Switzerland

G. KIRCHHOFF, School of Social Work, MSnchengladbach, Germany P.H. VAN DER LAAN, NISCALE, University of Leiden, The Netherlands B.A.M. VAN STOKKOM, Ministry of Justice, WODC, The Hague, The Netherlands

L. WALGRAVE, University of Leuven, Belgium Advisory Board

H.-J. ALBRECHT, Max Planck Institut, Freiburg im Breisgau, Germany H.-J. BARTSCH, Council of Europe, Strasbourg, France and Free University of

Berlin, Germany

A.E. BOTTOMS, University of Cambridge, UK

J.J.M. VAN DIJK, Centre for International Crime Prevention, Vienna, Austria K. G^NCZ^L, EStvtis Lórand University and Parliamentary Commission for

Human Rights, Budapest, Hungary

1. HAEN MARSHALL, University of Nebraska, Omaha, Nebraska, USA M. JOUTSEN, The Helsinki Institute for Crime Prevention and Control, Finland

H.-J. KERNER, University of Ti bingen, Germany M. LEVI, School of Social and Administrative Studies, Cardiff, UK

R. LÉVY, Cesdip, CNRS, Guyancourt, France P. MAYHEW, Home Office, London, UK E.U. SAVONA, University of Trento, Italy A. SIEMASZKO, Institute of Justice, Warsaw, Poland

C.D. SPINELLIS, University of Athens, Greece M. TONRY, University of Cambridge, UK P.-O. WIKSTR^M, University of Cambridge, UK

Editorial Address

Ministry of Justice, WODC, A.H. Baars European Journal on Criminal Policy and Research P.O. Box 20301, 2500 EH The Hague, The Netherlands

No part of the material protected by this copyright notice may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without

witten permission from the copyright owner. Printed in the Netherlands

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ERIC DUNNING / Towards a Sociological Understanding of

Football Hooliganism as a World Phenomenon 141-162

JULIAN V. ROBERTS and CYNTHIA J. BENJAMIN / Spectator Violence in Sports: A North American

Perspective 163-181

ANTONIO ROVERSI / Italian Ultras Today: Change or

Decline? 183-199

STÉFAN DE VREESE / Hooliganism Under the Statistical

Magnifying Glass: A Belgian Case Study 201-223

Current Issues

RON VAN KAAM and KARLA VAN LEEUWEN / The

International Victimology Website 225-229

Selected Articles and Reports 231-233

Volume, 8 No. 3 2000

Police Powers and Accountability in a Democratic Society

Editorial 235

JOACHIM KERSTEN / Police Powers and Accountability in

a Democratie Society: Introductory Report 237-245

AMADEU RECASENS / The Control of Police Powers 247-269

IMRE KERTÉSZ and ISTVÁN SZIKINGER / Changing Patterns of Culture and its Organisation of the.Police

in a Society of Transition - Case Study: Hungary 271-300 MAURICE PUNCH / Police Corruption and its Prevention 301-324 PHILIP C. STENNING / Powers and Accountability of Private

Police 325-352

DOMINIQUE MONJARDET / Police and the Public 353L378

JUDITH VOCKS and JAN NIJBOER / The Promised Land: A Study of Trafficking in Women from Central and

Eastern Europe to The Netherlands 379-388

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EDITORIAL

Safety and security are among the main interests of citizens. The legitimacy of the nation state is for this reason closely related to the position of the police (and of the army). Especially in democratic states a precarious relationship exists between police powers and the democratic control of the police. At the beginning of the twenty-first century there are several developments which put tension on this relationship. The growing unification of the European countries, the growth of organised crime, migration movements and the severity of the crime problems as such are some of the major challenges for nation stater and their power institutions. The effects of these developments on the position of the police have to be carefully weighed and judged. The editors of the European Journal on Criminal Policy and Research are quite happy to present an issue on this subject. They could do so because the Council of Europe orgánised its Twelfth Criminological Colloquium on `Police Powers and Accountability in a Democratie Society'. The colloquium took place in Strasbourg, from 24-26 November 1999. It generated a fine set of papers which we can present - in an adapted version - in this issue, thanks to the generous permission of the Department of Crime Problems (Penology and Criminology Division) which was responsible for the organisation of the colloquium. The extended papers will later be published in the Council of Europe Series Criminological Research, including the General report and Recommendations by the general rapporteur J. Kersten.

The introductory report of Joachim Kersten is included in this issue as the first article. It gives a comprehensive overview of the other articles. In the Current Issues section a study on the victims of women trafficking from Central and Eastern Europe is presented by Jan Nijboer and Judith Vocks.

J. C.J.B.

Themes in preparation:

Sexual Exploitation of Children Migration and Crime

Contours of a European Criminology

Suggestions and papers are welcomed. See the inside cover for the editorial address and additional information.

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POLICE POWERS AND ACCOUNTABILITY IN A DEMOCRATIC SOCIETY: INTRODUCTORY REPORT

ABSTRACT. This article by general rapporteur Joachim Kersten introduces the reports which were presented at the Twelfth Criminological Colloquium, organised by the Council of Europe in Strasbourg, from 24-26 November 1999. Europe is undergoing a phase of rapid change. This affects the conditions of policing in each country and on the European continent as a whole. It is actually the legai, political and cultural context of policing that is undergoing rapid change. This colloquium and earlier ones carried out by the Council of Europe served a crucial purpose: they are an assessment in the European context of what is happening in relation to the police, police ethics and human rights in democratic societies.

KEY WORDS: European Union, police accountability, police powers

When medical doctors meet at an international conference over appendicitis surgery it does not matter much where they come from as long as they share a common terminology (and they have Latin for this purpose) and as long as they can communicate in one language (which tends to be English). Our task is more difficult because policing, including its most modern forms, is engrained in the legal, political and cultural traditions of the countries that are represented at this colloquium. Inevitably, the inquiry of how we can create and enforce police accountability in the most effective way must take account of such differences.

Let me begin with a criticism that is traditionally being raised at the end of seminars or in their aftermath, against colloquiums such as ours that have to deal with policing in a comparative perspective.

1. There is too much time being wasted on folkloristic exercises of the type "This is how we name it and do it and so on, and how do you name it and do it and so on". Interesting for lome, the outcome for practically minded police practitioners is generally seen as very lim-ited if not negligible.

2. Because of political and cultural differences, the 'stuff' s difficult and delicate and requires long descriptions so participants tend to-wards legalistic arguments. This leads to rather abstract discussions, and again, expectations that see the purpose of such seminars as an outcome for practical policing being regularly frustrated.

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238 JOACHIM KERSTEN

As a result of having been to many conferences of the folkloristic/ legalistic type, 1 myself normally remain sceptical when it comes to comparative debates. However, having had the privilege to study the work of our rapporteurs 1 am definitely optimistic about our colloquium. We have a solid chance to avoid the aforementioned frustrations because:

1. The reports provide a concise and practice oriented analysis of con-temporary politico-legal and socio-cultural aspects of poticing and accountability.

2. The efforts that went into the preparation of the structure and the content of the next three days offer us sufficient time to compare our notes and work out some common ground for suggestions and future policies with regard to our topic.

In the first report, Amadeu Recasens points at a frequent feature of debates about the control of the police. The topic seems to invite everyday life theories of the following type: we all know what policing is, so let's get on with business. Aside from cultural and political characteristics in the last decades, policing has changed and at present it is going through a stage of rapid change. Recasens helps us to define the historical roots of the police in democracies. He locates the police within the framework of the sovereign state, the administration, the judiciary and the citizenry. In fact, as Recasens puts it, the police as the legitimate agent of the sovereign state's capacity to use force against citizens ought to form the very foundation of the state's legitimacy in a democratic society.

The first report explicitly rejects lome simplistic assumptions at the core of our debate, namely that more safety brought about by the police automatically results in less freedom and that a higher level of police efficiency must necessarily lead to infringements of civil rights. The citizens' expectation of safety is a prerequisite for the exercise of rights in a civil society and this safety must be guaranteed by accountable and effective forms of policing. On the other hand, forms of policing that set out to destroy the very premise on which individual and constitutional rights rely can never achieve genuine efficiency. In other words, policing as a combination of punitive strategies, and stigmatising the `dangerous classes' and minorities, involves the use of force but not with an effective and legitimate purpose. The control of police power as part and parcel of the state apparatus will be described in its interdependency with new demands on the part of citizens regarding micro (domestic sphere/neighbourhood/community) and macro (urban sphere/state/European) levels. On a European scale, the report then

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provides an oversight about the existing network consisting of internal, administrative, parliamentarian, judiciary, and civil (non-government/ social movements) control agencies and mechanisms. In its conclusions the concept of ethical standards is introduced as a means of effective high-quality police management. This concept will reappear in other reports and hopefully also in the discussions of our colloquium.

Recasens' report raises similarly pressing concerns about the ongoing process of European police formation that are shared among quite a number of critical observers.

This colloquium has an extended agenda. Accountability of police powers appears to be an issue in democracies that over the decades has enjoyed relatively stable political, social and economical conditions. And still, we may find occasional or even structural crises of the forces of order as Maurice Punch will maintain in his report. But in a grown Europe we have to confront the topic of police accountability with equal, if not more, intensity when it comes to countries for which democracy and a market economy of a capitalist nature is a rather new experience.

In the report prepared by Imre Kertész and István Szikinger we are provided with an assessment of the "dialectical coexistence of continuity and discontinuity" in policing which is typical of societies in transition. This affects a larger group of countries under the European banner. It is therefore most valuable that the second report from our Hungarian colleagues includes a comparative perspective. A common and salient feature of the transitory status of Eastern European societies is the fact of relative (to Western, and also partly to Southern European standards) economical disadvantage for larger sectors of their population. As sophisticated criminological research has shown, neither poverty nor unemployment can fully explain crime rates. Poor people are maybe more honest than the well to do. However, a climate of social deprivation with large numbers of citizens feeling culturally uprooted and dissatisfied with their achievement can result in a climate of antagonistic attitudes. Among others this may lead to accepting violence, prejudice, hate and condoning criminal means to achieve material gains or status enhancement. Problems of social and cultural discontinuity do affect policing in all modern societies, especially those that are in the process of rapid modernisation. However, the transition from policing in a military tradition and organisational set-up to democratic civilian modes of policing in democracies (policing by consent) is an obvious predicament in many societies in transition. The question is not yet decided: will the emerging police forces be civilian and community oriented, partly

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240 JOACHIM KERSTEN

because traditions of neighbourhood, school, and workplace social control that existed under state socialism rule, blend with notions of Western-style community policing? Or will they head towards strict and repressive control because of troubling rates of crime and disorder after the end of state oppression?

The analyses of recent police scandals in Western societies seem to suggest that democratie accountability and repressive styles of `law and order' policing (zero tolerance) do not go well together. Kertész and Szikinger see a `vacuum of legitimacy' at the Gore of the difficulties that go along with the formation of accountable police forces in the new democracies. They draw our attention to auditing procedure and human resources development, and to the decisive impact that ethical standards and transparency can have for good police management. Accountability in policing means first and foremost establishing a reliable account with those that are serviced: the people, the administration and other human services, the political players, and most importantly the democratie media.

There is no consensus in criminology about the efficiency of external and/or internal mechanisms for controlling the police. However, ombudsmen or police complaints' authorities are symbolic messages towards an enhancement of police accountability. The Hungarian report gives a practical example. It highlights the potential of the ombudsman institution, and thus, lays good groundwork for the colloquium's discussion of control mechanisms. Another fun-damental point in this report: an appraisal of the efficiency and accountability of modern policing has to transcend the popular images of law enforcers being busy chasing criminals and preventing crime. That maybe the media/popular culture vision of the police. The perception of policing though rests not on the performance of policemen and -women in car chases with gangsters, or even in clearing crimes. It is determined by the policewoman's and -man's behaviour and attitude in the streets, in their contact with citizens at the station, in everyday life and in extraordinary events, accidents and rescue situations. A further aspect of internal accountability is the right of police officers to remonstrate. It is the lesson the Milgram experiment at Stanford University has taught us: there are conditions under which human beings are more likely to maintain ethical principles, and policing ought to be practised under such conditions whenever possible. Remonstration procedures and related training information are necessary ingredients of internal accountability and a good work climate.

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Maurice Punch in his report supplies us with a typology of police deviance and a catalogue of remedies. What are the social and cultural factors that make police deviance grow? How can we effectively deal with it? The third report identifies one of the most misleading and, one must say, stubbornly maintained `hypotheses' of unethical and illegal police conduct. It is the `rotten apple paradigm' which qualifies as the theory of least imagination of police misconduct, but it has become one of the most fashionable theories among police chiefs, administrators and government officials during and after police scandals. Corruption involving police officers frequently goes unnoticed because both the corrupter and the officer who benefits profit from such practices. This has little to do with infectious moral diseases but with opportunities and lack of management and control, including self-control and partner control.

Similarly, unprofessional, at times criminal behaviour, from un-warranted `rough handling' to serious assault and even graver incidents is rarely reported because of the social and cultural characteristics of the most likely victims of police abuse: underclass young men and youths, and persons involved in illegal activities. When they report they incriminate themselves. Punch delivers a typology of police deviance that is primarily practice oriented and it indicates that corruption is not necessarily a steady process, starting with a free cup of coffee and ending in torturing suspects to get a confession. Noble cause corruption, or as Klockars has termed it, `Dirty Harry' methods, may be applied by otherwise very correct officers. Police deviance is more often than not group behaviour grounded in established arrangements which are embedded in the structure of policing as a work situation and as a professional culture.

We are dealing with social behaviour, potentially collective attitudes, not with individual wrongdoing and moral failure. The rotten apple idea of police misconduct has become increasingly counter-productive to explain, or alleviate, the problems involved. The ongoing use of the rotten apple theory by chiefs and politicians in charge is not for protecting good fruit against infection but, to use another traditional metaphor, for putting barbed wire on the blue wall. Rotten apple assumptions are part and parcel of the code of silence. Why? "When police deviance is uncovered it tends to taint the whole force." Police scandals lead to frustration and a decrease in work motivation in honest officers. Accordingly, the police organisation as a whole, from rank and file to the top management tries to avoid scandals. And there is the Serpico effect: the one who blows the

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242 JOACHIM KERSTEN

whistle is not seen as a moral hero but as a snitch, a traitor who rats on others.

Although it is wrong to perceive of police misconduct as a linear process Punch emphasises lome interconnections between avoiding work, deliberate non-enforcement, predatory corruption, `Dirty Harry' methods (of forced confessions), and outright police crime. The question that Punch raises in his report could not be put more clearly: do we need ethics printed on glossy paper and posters and as a domain for police chaplains or as an encompassing strategy of police training and management? Police scandals and reform execute a peculiar cyclical movement as the third report demonstrates: police corruption becomes evident, there are media reports and political concerns. Then, high-ranking commissions investigate misconduct. Measures are being taken (or not), in order to stamp out corruption once and for all, and 10 to 20 years later the cycle makes another turn. Apart from internal affairs investigators, ombudsman control and integrity testing, Punch sees the role model performance at the top echelons of the police hierarchy as a primary means of corruption prevention. Police conduct requires constant monitoring, rigorous leadership, especially when it comes to policing minorities, the drug trade and illegal drug consumption. On a rating of `evilness' Punch lees one of the worst problems in forced confessions, which deprive people for long periods of time unjustly of their liberty.

Looking at large scale scandals in the European arena, the report finds a variety of structural causes from institutionalised (or in some cases opportunistic) racism, incompetence and low equipment and per-formance standards, and in other cases `Dirty Harry' methods and `unconventional' (that is, criminal) policing of the illegal drug trade. To alleviate the existing problems the report addresses three levels of action. One is aimed at group dynamics in the force, the second at organisational structures, and finally the third at the relationship between society as a whole and the police. To reinforce inhibitions against unethical, unprofessional and illegal behaviour by police officers, circulation, particularly in sensitive (corruption prone `danger zones') areas of policing, early intervention schemel and a somewhat restorative justice approach to petty infringements, could all help to keep the threshold as high as possible.

Philip Stenning directs our attention to the reality that in many European countries private security forces outnumber public police officers. The scope of this problem and the fact that it has been chronically under-researched makes Stenning's report a very substantial

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contribution to our colloquium. Stenning undertakes a thorough comparison of private and public police powers, and their respective accountability. Like the other rapporteurs, Stenning challenges the conventional understanding of private policing as somewhat less desirable accountable, in one word a second, if not third class of enterprise (although this may probably still be true for parts of the business). Our perception of public versus private policing is formed by the underlying assumption that public domain policing is only legitimate and desirable by state police. Stenning reveals the simplicity of this notion. Mass private property, as he calls it, shopping centres, theme parks, sports and popular culture events, banks and public transport systems are no longer guarded by police officers but private property owriers and corporations employ private security, and private security itself has become a large, partly global enterprise. Correspondingly, a debate of policing and accountability has to include private policing.

As is the case with other overly simplistic assumptions regarding our topic of police powers and accountability (such as `more safety means fewer civil rights' or `it's only the single rotten apple that causes the problem'), the public versus private policing debate contains stereo-types and errors. An informed discussion has to be aware of this, and by comparing and contrasting private and public policing Stenning affords us with thought-provoking material. When it comes to public spheres the role of the state has changed. The role of private initiatives, lobby groups, profit and non-profit-making organisations in the security business have suffered constant neglect. Consider the FESU with its headquarters in Paris. This is, if you wish, a private policing initiative of 250 European cities for a safer urban environment that combines all kinds of social and entrepreneurial interests into a common effort. This shows that the demarcation line between private and public order maintenance and crime, disorder, and inconvenience avoidance has long been blurred and is far less recognisable as some idealistic arguments would have it. In a similar vein as in the report by Punch, Stenning enters the practical arena of security personnel, be they public or private. What is their situation as workers, where does the personality come in? Stenning looks at police powers and differences between private and public in terras of their respective 'tool-boxes'. These consist among others of fornial legal powers, physical and technological tools, personal and symbolic tools. Similar to Kertész and Szikinger, the Jatter is regarded as significant for the efficacy and accountability of the policing enterprise.

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244 JOACHIM KERSTEN

Private property is privileged and protected to a differing degree in European jurisdictions, but nowhere, however, is private property and its protection up for gratis. The law tends to protect property, and thus, this results in more extensive powers than some public domains. Being on `mass private property' grounds as a patron/customer, one's civil rights maybe much lens safeguarded than would be the case on state owned territory. With the absolute priority given to private property and its protection by some jurisdictions, this may actually pose a severe invasion of privacy and liberty rights than any routine activity the state police can muster. Random searches and new forms of surveillance are under critical scrutiny by civil rights groups, lawyers and political organisations, yet private surveillance and search technology seem to meet with much less criticism. Why? The absence of security, order, ambience, and the prevalence of risk and inconvenience would endanger the smallest common denominator interest of persons on mass private property: the consumption of goods and services (safe transport from home to work on public transport systems or from France to America at airports, or undisturbed enjoyment with Mickey and Donald and one's family). And while the `success' of the public police is being measured in crime and clearance rates, in private policing it is first and foremost the maintenance of a consumer-friendly atmosphere. Among other pungent issues Stenning draws our attention to the differente between theoretical and practical accountability which tends to ignore what he calls "the notorious secrecy" of the public police. Since private policing can and must be held accountable, the report describes and compares control mechanisms as they apply to private and public police, e.g. criminal liability.

Times of change create fear among sections of the population. Once such fears are channelled into a stream of crime anxiety as a leading concern, the police and criminal policies are not likely to be left unaffected, a point that will be dealt with in Dominique Monjardet's report. Fear of crime distorts the perception of safety risks in everyday life conditions. `Stranger danger' becomes a prominent feature, e.g. in semi-fictitious media accounts of Mafia crime and all-encompassing violence, especially in TV-documentaries. As the media fuels mostly unwarranted fear of victimisation they do provide a perfect climate for populist politicians who try to `out-Rambo' each other. This may not afford a solid basis to decide on the complex question of how we want to keep the balance between liberty and security. Without question, we have new forms and a development towards the internationalisation and migration of certain criminal activities. This has led to a debate about

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police powers and an increase of police powers. On the other hand the public and media perception of an ever increasing level of crime, and an encompassing if not global threat being posed by organised crime groups, may over-dramatise the situation and the challenges we are facing. As Monjardet points out in his report: fear of victimisation appears not to be causally linked to the actual development of crime and crime control. Fear of crime and a desire for law and order on the part of the electorate may be phenomena somewhat independent of actual policing and crime control. But in turn they seem to influence politics in quite substantial ways. This is where `symbolic messages' can become a crucial factor to form the image of policing and social control.

Hochschule fur Polizei, VS-Schwenningen Germany

Political Science Department Northwestern University Evanston, IL 60208

USA

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AMADEU RECASENS

THE CONTROL OF POLICE POWERS

ABSTRACT. This article points to a frequent feature in debates about the control of the police. Aside from cultural and political characteristics in the last decades, policing has changed and at present it is going through a stage of rapid change. The author defines the historical roots of police in democracies. He places the police within the framework of the sovereign state, the administration, the judiciary and the citizens. The state's control of police powers is described in its interdependency with new demands on the part of citizens regarding micro (domestic sphere/neighbourhood/community) and macro (urban sphere/state/European) levels. On a European scale, the article provides an oversight over the existing network consisting of internal, administrative, parliamentarian, judiciary, and civil (non-government/social movements) control agencies and mechanisme. In its conclusions the concept of ethical standards is introduced as a means of effective high-quality police management.

KEY WORDS: control over the police, European Union, police powers

INTRODUCTION

There are several ways of approaching the subject of the control of police powers. One of them would be to list the control mechanisme of police forces state by state in Europe. This approach would result in us exposing an unoriginal range of similarities, given that the control mechanisms of the police are very similar all over Europe. Such a control has traditionally been analysed from the individual behaviour of police officers, and from penal and disciplinary standpoints. Therefore, the regulations established in each state are varied, and they are aimed at stopping transgressions and abuse. However, the control of a police body is much harder and diffuse, and requires a prior setting of objectives and an a posteriori checking of them. This kind of more complex control is less developed than the individual-based one (De Valkeneer 1991).

If we attempt to study in-depth why there is a need to control the police, the first thing to consider is that we often start from an apparent `reality' which we all take for granted, when, as a matter of fact, this reality is not so obvious. As 1 understand it, too many things are happening within the boundaries of what we refer to as the police. These transformations should cause us to assess what is taking place in the police and what control mechanisms we should establish, change or maintain in order to assure

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the correct working of that body according to the basic principles of safeguarding the rights and freedom that our European environment requires. With this aim, and despite the risk of not obtaining satisfactory responses, we must place the police and the control mechanisms in the newly developing context. In order to carry out this kind of analysis, particularly focused on the institution, I have divided this article into four sections:

- What kind of police are we talking about? - What powers do these police forces have? - How are such powers controlled?

- Can some prospective lines be established for the future?

WHAT KIND OF POLICE ARE WE TALKING ABOUT

At first sight, the word police seems to indicate a corporation or function known to all and whose values would be universal and timeless. This apparent recognition of the police has seriously distorted any attempt of approach or analysis. In fact, there is the widespread idea that the police do not require any definition since `we all know what it is'. Nothing is further from the truth. As a matter of fact, trying to reduce such a warped view by placing the police in their historical context has been one of the most pressing needs in those studies seen during this last decade (see Gleizal 1985; Journés 1988, Recasens 1989; Gleizal et al. 1993). Breaking the myth of a universal and timeless police is the first step towards an analysis of any of the aspects related to it.

Therefore, to attempt to approach the police and its control implies having, first of all, placed it in an historical framework. In order to do this, I propose that, rather than going back to the usual outline consisting of trying to ascertain what is the initial starting point of the police (that would inevitably lead us to the legitimating equation of the existing powers: police = order = universal and timeless), we shall use the opposite procedure. This would imply establishing when the police that we know and identify nowadays, began to be historically recognised within the context of modern European countries.

Starting from this premise, the first definition of the modern police can be found in the Declaration of the Rights of Men and Citizens of 1789 in Title 12, where it says: "La garantie des droits de l'homme et du citoyen nécessite une force publique: cette force est donc instituée pour l'avantage de tous, et non pour l'utilité particulière de ceux auxquels elle est confiée."

Within this text we find the essential features that the modern state and constitutionalism warrant to the present-day police forces. These can be

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THE CONTROL OF POLICE POWERS 249 summarised by saying that they make up a public power that safeguards rights and liberties and that it serves all. Such a public power has to be financed by public funds, as is established in Title 13 of the aforesaid Declaration. A glance at police history will allow us to see that the chronological models that precede it do not conform to a police body of such characteristics. Although there were instances of control and individuals in charge of keeping a certain kind of order (not exactly public) in previous European societies, these forces are no longer recognisable when compared to our present-day police, while on the other hand it is recognised.as the police model instituted after the French Revolution.

This model is closely connected to Title 3 of that Declaration when it establishes that "Le principe de toute souveraineté réside essentiellement dans la nation. Nul corps, nul individu ne peut exercer d'autorité qui n'en émane expressément." With this the police and state sovereignty are directly linked. These two. concepts have run parallel to each other throughout the nineteenth and part of the twentieth century.

All the modern-state theories, from Kelsen (1949), who attributes to the state the right to control the man-citizen, to Max Weber (1922) who defines the modern state as based on the monopoly of legitimate physical coercion on the human community found within its territory, are precisely based on this trinomial: sovereign state - power of coercion - police. The control mechanisms, should therefore ultimately be in the hands of the sovereign nation, which should control the state, which should, in its turn, control public forces.

Particularly during the last two decades, the main problem encountered in Europe is precisely the breakdown of that trinomial. The inrush of new elements transcending the concepts of state and sovereignty, such as those derived from the European unification process as well as those elements originated in the privatisation of some sectors of security, have plunged the traditional liberal model of the state into a probably irreversible crisis, and thus, that of police forces.

The birth and development of a European police space is demanding, in an increasingly pressing way, the handing over of state sovereignty to European institutions and instances in all areas, including police powers. Despite the reluctance of states, police space seems to be increasingly `communitarised' as it moves forward, according to the Trevi action programme, the Schengen agreements, the Maastricht EU Treaty, and its reform known by the name of the city of Amsterdam (for an approach to this topic see Bolten 1991; Bigo 1992; Fijnaut 1993; Den Boer 1994; Pifianes 1994; Recasens 1995a,b, 1996; Fontenaud 1996; Ministerio de Interior 1997). In each and every one of these processes, the state

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sovereignty (in reference to the nation-state) has gradually lost its content and has follwed a path, that although incipient, seems to be heading for an irreversible loss of the legitimate state monopoly on violence, since it will have to share such prerogative with other instances that may be supra-state European, and also, as we shall see, infra-supra-state (municipal or regional) instances, or even extra-state (private).

The state's inability to provide a solution at all levels for the widening concept of security/insecurity, as well as the impossible financing of the costs of that security, have fostered the development of private security enterprises and agencies. Nowadays this has become an objective fact which there is no point in denying (South 1988; Johnston 1992). In the case of Spain, the number of private security agents is higher than that of the National Police Force. With a task force of nearly 60,000, these private security agents are under the command of flourishing companies that are taking over a market of growing demand. The figures are similar in France (where enterprises and internal security services already amounted to a task force of over 72,000 and 3,200 companies in 1988), and in most European countries (IHESI 1990). The business turnover of the European security market in the 12 countries of the EEC in 1993 was globally estimated at 9 billion pounds sterling (Ocqueteau 1992).

For all this, it can be stated that we are now witnessing historical change in the making that marks an era during which the principle of the legitimate monopoly of violence by the state has been bom, develops and breaks down, and with it the monopoly of the police, as its natural consequence. That era began with the Declaration of 1789 and has lasted until now -for the sake of providing a date, until the constitution of Europol (either adopting the agreement signature date in 1995 or favouring the date when it came into force, 1 October 1998, or when it was actually implemented, 1 July 1999). At any rate, the truth is that if such trends are consolidated (as the case seems to be), it is likely that the next century will be a time of deep change regarding the pattern, structure and dependency of what we know today as the police. This will generate a specific European space, and a void in each nation-state that will doubtlessly affect police powers, as well as the control mechanisms ofpolice activity, which will be created in the various gaps that will appear or that will be modified in a European, as well as a state, context.

But this is not the only scope where the power cession - or loss of sovereignty, if you like - by the state has been made evident. Parallel to the police spaces, deep transformations are also taking place in the laws spaces, which also implies in itself important changes in the role played by the social actors involved. Thus, after long decades of a state monopoly

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THE CONTROL OF POLICE POWERS 251 on justice as a subtracting/abducting element of violence/revenge on the parties involved in contravening the law (Girard 1972; Humbold 1988), a greater role by individual actors to the detriment of the state is nowadays observed. Offender and offended seek to settle their differences in para-judiciary areas or claim its presence as something beyond being liable or

a civil contingent beneficiary of state-imposed punishment.

Nevertheless, just a glance at European codes of law will allow us to see that the victim takes up only a residual space as the mere receptor of an economical compensation derived from a crime, while criminal liability sterns from the damage caused to the state's willingness to protect some judicial property. During the last few years, citizens, and victims in particular, have claimed their own space. Moreover, sine the 1970s a criminology trend has strongly emerged towards studying the victim -victimiology (see e.g. Fattah 1967; Neuman 1984; Landrove 1990), while on the other hand, citizens demand a direct involvement in conflict solving. Without looking any further, on 5 October 1999, 2,500 voluntary citizens received a warrant card as mediators in cases of wife-beating from Spanish police. The objective of these citizens is to advise the victims and accompany them to a police station or a court of law, thus becoming `collaborators' of the security forces. These mediators will have a police liaison officer available in each police station to whom they can report the complaints that they receive.

Such mediating mechanisms (Faget 1997; Monneau 1998), or the victimiology proposals, may initially seem incompatible with the spirit of the law and penal codes, and with states used to granting themselves an unquestionable authority in criminal and judiciary matters and that substitute themselves in the role of the offended for the sake of the ultimate goal of keeping law and order in their sovereign territory.

In summary and as an answer to the question heading this section, we are talking about a police force that emanates from the liberal state, that sets itself up as part of the state machinery and that has evolved following its own model of a democratic and social state, and a law state. But at the same time we are undergoing a transformation process in which the loss of sovereignty and its corollary, the loss of the monopoly on legitimate violence, have caused the emergence of new spaces, such as the European police space or the private security space. As a consequence of this, and of the material impossibility by the state of undertaking the `security economy', the model has shifted towards a partnership (IHESI 1998) where the police are irreversibly becoming just another actor in the game together with citizens, victims, aggressors, other institutions, other services, and so on (for an analysis of actors, see AAVV 1990). The control instances,

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following the dynamics of that evolution, must multiply, atomise and fragment themselves. This generates a growing difficulty when it comes to identifying control and the way it is applied, as well as its efficacy.

WHAT POWERS DO THE POLIGE FORCES HAVE?

The Power of Security and Its Control Argument

One of the keys to the growing police power is based on the dilemma of efficacy versus rights. The essential implementation in modern con-stitutionalism of a rights and liberties framework, as well as the struggle to make its effectave guardianship come true, have contributed to the willingness to move forward in matters of human rights in an international setting. But sometimes such an effort has been impaired by attempting to impose two false relationships in terms of equality, where the police play a predominant role. These relationships are: liberties - security, and safeguard-efficacy. In brief, the argument is as follows: ifgreater security is required, then certain liberties must be sacrificed. It is the only way of keéping the balance in that relationship. Equally, in order to safeguard the enjoyment;of,líberties an efficient protection is necessary, and to obtain it, those charged with that protection must be empowered with the adequate (effectave) means and,possibility of action, which is obvious, even at the price of altering some;rights and liberties, which is false. In summary, more security, means less free dom;•more efficacy means less safeguards.

Following this rationale, it islnecessary to sacrifice part of the liberties for, the,sake of security, and its necessary, to sacrifice part of the safeguards in order to grant the-efficacy:in.preserwing,them. Obviously this con-tradiction leaves out,two basic.princip1esof the liberal democratie model: -'Security is:a cónditió'n si'né quci=nbn fór' tlie'full=ëxércise of rights and liberties, but'it'i's'riëver á riglit'cóinpàràblë, aiid ibt-ii 'the least oppos-ablë, tó'ihë'fói'inër. , • i , , rrc Llrt . ^r)! r .!r ..:(, , 'ti, • ^i ,

-'Efficácyb`ased ón,'th'ë-désfiuctiórióf tsbbjedtives'on'behàlfof a bétter resultis1he áiitithesis'df'éffcác)'which i iii téxàctly!rëlate'óbjectives

^,'.; ^'!; _{.^^1 iiClf.} N.1,; f J Ïr^;".,J;;.• ,_^') ^. _: ;1i: ,J"; t i't . d.

to'réSults.

Ignoring or, forsking,.these-;principles,fort the; sake of the, abolitionist;, arguments exposed above implies the appeárarice:of what Zaffaroni (1.984) denominates a ,`.parallel, system'„which consists of a mixture pf puriitive z, system administrativasation and criminàlising selection,through: stereor types Opting for.one modelor the, other implies, different police .control .

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THE CONTROL OF POLICE POWERS 253

mechanisms, being very difficult to control police forces that grant themselves the authority to act against some abolished liberties on behalf of security and ef icacy. On the other hand, within a democratic system, the rights and liberties and safeguards are precisely the ones taken as the main parameters against which to set the control (constitutional and political) of instruments (police and others) and its fitting into security and efficacy results. With this, it is not only possible to exercise control but it can also serve as a feed back for establishing future policies in security and police efficacy.

It must be pointed out that such trends and proposals are allo valid for a European police space, where there has been a confrontation between those sectors who are afraid of a `security deficit' and claim greater security measures (the Europe-fortress model) and the very European Parliament itself, which in Resolution A3-01/23/92 of 8 April 1992 warns against a `democracy deficit' in the European institutions that affects the protestion of rights and liberties, among others, preventing the full achievement of a `Europe of the citizens' or of the people (Morin 1990; Duverger 1994).

In Europe there are several levels of police and security that are basically differentiated by their territory and the authority systems that regulate them. Whether it is a municipality, region, state or European level, control of security and efficacy principles are set out at the top through committees or boards that under the direction of a mayor, a regional security head (German Liinder, Spanish Autonomous Communities, lome Italian Regions) or state security head (national security boards) are responsible for setting the guidelines (security policies) and evaluating results (control) (for a pioneering study in Canada, see Boucher 1992).

Other control organs emanate from these, usually from each police force. The main problem with these security boards or organs derives from their varied and changeable composition (only political, political with significant associations, with or without technicians). The ones that seem to work better are the mixed boards, made up of politicians, relevant citizens' associations and organisations, and police technicians who create security policies and set priorities, without going into the technical details of their implementations. These are left to the corresponding police forces. And with no prejudice to the evaluation of results (security/efficacy) by the security boards, who can use what they deem necessary (statistics, victimisation surveys, interviews, etcetera) for their appraisal. Some examples can be mentioned in the case of Spain:

- National Council for Citizen Security (1995). A mixed organ of par-ticipation (technicians, policemen, citizen associations and organisa-tions) to lay down security polícies.

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National Council of Autonomous Representatives: Security Board. A State and Autonomous Community mixed organ. It includes techni-cians for special topics. It lays down joint political and technical items as well as its co-ordination. It is operative in Catalonia, Basque Coun-try and Navarre, where the Autonomous Communities have their own police forces. These Autonomous Authorities have also raised the pos-sibility of establishing their own Security Boards.

Municipalities: Local Security Boards. These are ruled by a Ministry of the Interior Order of June 1998. They are mixed organs where the police, technicians and appointed politicians debate security in their municipality.

Barcelona: Municipal Security Board. This is a mixed organ of partici-pation by the police, political representatives, the judiciary and citi-zens who lay down security policies.

Levels of Police Power Implementation

Several levels must be differentiated in the implementation of power by the police. Not only must the territoria) level be considered but also the operative level in a very decisive way. Within the framework of the state operative model two main blocks can be established: the block traditionally known as the judiciary police and the administrative police.

There is certainly no unanimous consensus about what the judiciary police body is and how it should implement its operative function. The common denominator in European countries would be based on the fact that the judiciary police comes under the organs of the justice ad-ministration, but from this common point onwards it tends to diverge. In some countries the judiciary police are a function (Spain, France, United Kingdom, Germany, Italy), and judiciary police officers are functionally responsible before the justice organs, but organically responsible before their own forces and, therefore, the executive power, according to the traditional division of powers. But not even this functional accountability is clear, since in lome cases they are answerable to an examiningjudge or a magistrate, while in other cases they are answerable to the Public Prosecution. In some cases, as is the case of the eclectic Title 126 of the Spanish Constitution, they even come under Judges, Courts of Justice and Public Prosecutors generically. While in other countries, the judiciary police is a specific body within the police force which comes either under the corresponding Ministry of the Interior or directly under judges or prosecutors, or the Ministry of Justice, as in the Netherlands or the `police d'estrades' as in Belgium (Blázquez 1998).

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At any rate, what seem to be unanimous are the minimum operative functions that the police forces have been entrusted with and which consist of arresting alleged criminals, seizing the object of the crime or gathering evidence; and making all these things available to the judiciary body, as well as investigating or reconstructing the facts. In this area, the powers of the police forces are based on their condition of reporters/recreators of a real situation, and on their capacity to arrest citizens and limit their freedom for a while (it varies according to states) as under their absolute control.

The control of the judiciary police is usually shared. In the majority of cases, the judiciary authorities can request from police heads that they sanction those officers who have incurred disciplinary faults.

At this point it is relevant to recall the influence that the police have on the criminal justice system, which is understood as the summing up of the jurisdictions of police, justice and execution of conviction. Out of these, the police are the ones who are more closely in contact with citizens, and the police hold the decision power when it comes to selecting those to be introduced into the system. Subsequently, there is a relevant paradox, as a result of the fact that our societies claim-and this has been understood as positive - that police forces give priority to preventive functions, while, on the other hand a detailed control over police action is demanded. It is difficult, although not impossible, to make these things compatible, given that an a priori or ante delictum request for police intervention requires empowering the police with a `power bonus' that will allow them to act upon concepts such as suspicion or stereotypes. Ifthis is the case, it is much harder to control this than controlling cases ofpost delictum actions, where police actions only have to be contrasted against prevailing laws. In that setting, control can only be applied when those responsible for laying down security policies, and their subsequent assessment and appraisal, fully accept their leading responsibility (for an analysis of the autonomy of the police in different European countries, see Delmas-Marty 1995).

The police not only have that decision-making capacity, they also have open to themselves the possibility of re-writing the reality of what has taken place through their preliminary investigations. In European legal systems, the rules of court are usually established, and they can debate the legal basis up to the hilt, while they hardly ever question the factual basis, where the parties concerned discuss not so much what happened (a unique true version is impossible after the fact), but what the police say happened. The selection capacity in the criminal justice system, and the capacity to establish the history of events, are elements that provide for the afore-mentioned `power bonus', the control of which is much more complex than the judiciary control of police actions (Recasens 1992).

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It often happens that the appeal motivated by the relevance and social alarm of events derived from a crime, very often focus our attention on the judiciary police (the most highly valued branch, even among police-men), forgetting that the bulk of police force activity relies on its activity as administrative police. It is in this field where the discretionary powers and the coercive capacity of the police find greater room for independente, (avoiding the direct control of the courts), and where the opportunities to give in to bribery (to a greater or lesser degree) are frequent. The necessary principles of discretionality and opportunity (Aguirreazkuenaga 1990, pp. 368-378) leave the door open to accepting favours, gifts and bribes.

To the traditional police activity in this field, we must add the modern tendency to `administrativise' areas that previously had either not been sanctioned or were sanctioned through criminal law. The increase of regulations in that sense causes us to see a willingness to take a share of police activity away from the judiciary control, which is particularly worrying. This has been the case of laws allowing administrative arrests or interventions with no judiciary authorisation, as is the case in Spanish law (Ley 1/92 on Protección de la Seguridad Ciudadana), lome aspects of Belgian legislation (Nouvelle Loi Communale of 24 June 1988), or the English regulations of the 1980s (Police and Criminal Evidence Act 1984 and Public Order Act 1986).

Police organising in the various European States therefore implies lome powers that end up as police powers; the power to select, the power to define, the power to accuse/sanction or `ignore' the accusation/sanction. All this endows them with a status before citizens which is much higher than the police profession should enjoy according to its legal framework. Once again, the `power bonus' appears, and it is always based on the same paradox mentioned above. The control of that cannot be left in the hands of a sole body, it requires a co-operation of the political, judiciary, administration and citizen domains.

It is a fact that European States are uncomfortable with their police models. This fact rests on the inability to provide an answer to citizen demands, which are increasingly focused on two apparently opposed poles: that of macro-security/insecurity which is generally found in drug-traffic or organised crime, and that of the micro-security/insecurity which is reflected by claiming a police force that makes people feel objectively and subjectively safer in their everyday environment (family, home, neigh-bourhood, or work place). To that, the state offers vertically-structured organisations with badly defined roles and which are badly distributed and co-ordinated due to rigid regulations that render them incapable of adjusting themselves to citizen demands. This has subsequently led to the

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so-called accordion operation in nearly all European States. Practically all countries have undergone some re-structuring during the last decade. The most centralised state administrations have tried to decentralise (France, Spain, and Italy), while traditionally decentralised countries have been making huge efforts to concentrate their police forces (England, the Netherlands). Other States were, or are, undergoing internal transformations or re-structuring (Germany, Central and Eastern European countries). These processes are for a large part the result of the transformation of social and citizen demand, which has transcended the scope of the nation-state and become polarised: one `macro' (Europe - high criminality and organised crime) and the other `micro' (community policing, at local level). This bipolarisation has generated the emergence of collateral factors in police forces. They have often generated internal power struggles (among police forces, among police unions, and government) in order to have a larger share of power. On the other hand and in the face of structural changes, police forces seem to have strengthened corporativist aspects and professional rigidity in order to face up to this blurring or weakening of their image. At any rate, such a situation seems rather due to the present moment than to structure, but it must not be overlooked given the struggles, mutual accusations, claims and debates that European police forces are going through, and that can be illustrated by the on-going debates about demilitarisation, decentralisation, community policing, or reforms derived from serious events (Belgium).

Nevertheless, the emerging of a European police space generates doubts as to whether traditional police powers are going to be mimetically repeated in the new European structures, or whether new powers are going to emerge from the new functions and structuren. What seems clear, at any rate, is that where there are European executive structuren (the European Union), the pattern of the traditional division of powers of the liberal state is being unevenly reproduced, generating what the European Parliament has labelled in several reports as a `democratic deficit' (European Parliament 1992, 1993a,b).

From the second half of the twentieth century onwards, and particularly during the last three decades, the idea of a new European police space has gathered strength, and it has developed around three leit motivs or ideas. During the 1970s terrorism was the driving force behind the intensifying of police contacts in Europe, but in the following decade drug traffic was added to it, understood as no longer a problem of drug-addicted subjects but as a transnational business caused by the drug traffic originated by the single European Act coming into force. In 1986 a new element was added to the previous ones - it was the fear that the free movement of

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people could increase the mobility and impunity of criminal groups. This resulted in the police demand of the so-called `measures compensating free circulation'. The accumulation of all these reasons promoted the creation of a complex police structure whose ultimate result was Europol.

But although the European Union is important, it does not cover all of Europe. When referring to that continent all the other countries contained in it must be bom in mind, and also the institutions that, without being directly responsible for police forces, have a growing influence on the analysis and study of the European police structure and space. This is the case of the Council of Europe, whose greater extension and wide scope allows it to set itself up as a privileged observer of European police processes and their gradual integration into a unified space.

In summary, the European police space has a future profile with a tendency to build up a relational network or framework, basically set up on a data exchange through a common powerful information system. Thus, the Schengen computer system - that up to now was only applicable to countries subscribing to the Schengen Agreement - is being enlarged to include the Treaty of Amsterdam signing countries, and it will be of immediate application in all the countries that join the European Union. Some of them have already started negotiations for their incorporation in the coming year. Among them the most immediate candidates are Poland, Hungary, Estonia, Slovenia, the Czech Republic and Cyprus, while others will follow, such as Bulgaria, Latvia, Lithuania, Slovakia, Rumania, and Malta.

But it would appear that they have ruled out, or at least that it is something to be considered only in the long term, creating a European police force, such as a federal European police force. That role has never been given to Europol. The concept of state sovereignty still carries too much decisive weight, and the Weber arguments are still prevalent.

The control of a European police space has not yet been outlined. On the one hand, Member States still keep their own control over their police delegates whilst after the reform of the Union Treaty in Amsterdam, in the most communitarised fields, the European Commission seems to be able to exercise some control. The European Parliament also claims its share of that control, and the recently reformed European Tribunal for Human Rights could also intervene. But in fact, a clear control picture is yet to emerge within the European police space. It is important to point out that during the recent extraordinary European Council Summit held in Tampere (Finland), some progress emerged in the field of common teams of investigation, operative groups of chiefs of police, resources for Europol, a fiscal body, magistrates and police (Eurojust), etcetera.

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How ARE POLIGE POWERS CONTROLLED?

Broadly speaking, the powers of modern police forces emanate from their particular position/positioning in the social network. Thus, if we want to analyse the elements of control as regards the positioning of police power with respect to the large classical structures, we should look at that power and its traditional division of powers in the liberal state. However, this shows itself to be insufficient in our present society. We should add, on the one hand, the inevitable reference to the division of powers as it is emerging in the European structures and, on the other hand, the new relationship of police power with specific forms of execution and other bodies of power. With this goal in mind we are developing a structure based on that established by Janssens (1997), but opening more perspectives and voluntarily leaving this structure wide open, because many more chapters in the unlimited casuistic relationship of police power and its control seen in relation to the political and social structure, can be found. Without pretending to be thorough and for the sake of providing starting points for discussion, we can look at some of these mechanisms.

Police - Police

A police force, as a corporation, generates endogamic relationships. It talks to itself, so that a part of its/their power/s emanate from the fact that it is corporate. Therefore, first of all it is necessary to establish an internal control system. Proposing the full outside control of the police means, on the one hand, reinforcing its corporativity by generating self-defence mechanisms before what is considered an èxternal aggression'. This only increases opaqueness for the controller, which is sometimes the cause of poor results in a potential investigation. On the other hand, such a proposal only means considering the police ìrresponsible' or ùnder age'. A controlling `paternalism' emerges, considering the corporation as incapable of purging its own responsibilities. It is a suspicion principle contradictory with powers that, on the one hand, are granted to the police, and yet it implies denying the will and the capacity of the organisation in order to adapt it to the principles of democratic transparency and self-control that our socio-political models demand.

It seems, therefore, essential that the first level of control be exercised by the corporation itself, as it happens with most professional corporations (doctors, lawyers, judges, journalists). In that sense, creating `internal affairs' brigades, and promoting a hierarchy and behaviour reference frame, seem to stand out as priorities and at the same time it is necessary

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to count upon prepared leaders who are aware of this theme (Crawshaw et al. 1998). Nowadays practically all European police forces have interral affairs units which, although it is true that they have allowed themselves to be influenced in some cases by an excess of corporativism, it is also true that they sort out - with greater or lesser success - the majority of `minor affairs', which end up in disciplinary proceedings and interral sanctions.

Obviously, for such units to carry out their task, on the one hand there must be police laws with a sanctioning code clearly outlined. But on the other hand, while sanction lists are established, it is also very important that the police are provided with a code of behaviour to follow. In that sense, a deontology regulations framework, under whatever denomination (deontology code, behaviour code), is proving to be the key element on which to base the demands (or sanctions if necessary) for specific police behaviour, and also to inform citizens as to what expectations they can have from a professional police officer with whom they get in touch. In that sense several international texts have been produced. They have been included in the legislations of European States. On the other hand, there are various groups and commissions dealing with police deontology. We can quote, as examples the Regulations Code de déontologie de la police Nationale (France) Decree no. 86.592 (Porra and Paoli 1991) and Chapter II de la Ley Orgánica de Fuerzas y Cuerpos de Seguridad 2/86 (Art. 5) Basic principles of behaviour. At an international level, we should mention the two great texts on this subject: the Code of Conduct for those responsible for the application of the Laws of the UN (Resolution 34/ 169 of 1979) and the Declaration on Police of the Council of Europe (Resolution 690 of 1979). However, we should not forget the recent and important appearance of the Recommendation 1402 (1999) on the Control of Interior Security in the Member States of the Council of Europe, which due to its mainstream nature and recent appearance, will be analysed later on. As for examples of commissions, we can cite the setting up by the Council of Europe of a Committee of Experts on police deontology and the problems connected to police practice.

Police -Administration

Taking the administration as a structure mostly under the executive power, it must be pointed out that essentially the police are in theory at their service. The police are under, get their wages from, and receive their statutory regulations from the administration. Precisely for this reason 1 have established a difference between the corporate police relationship and the administration, although it can and must be understood that the

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police are in themselves an administration. At this point it seems pertinent to clarify a misunderstanding. It is often said that the police are at the service of citizens. That expression, in a broad sense, can be justified, hut it induces considerable error, since the concept of `service' has a much more specific meaning that implies organic and functional dependency. It would probably be better to establish the following correlation (see Figure 1).

With this outline, the `macro' insertion scope of the police becomes clear, as well as their ambivalent relationship (which sometimes becomes ambiguous) with the state and citizens. If the state is legitimated basically by the capacity granted to it by citizens, (although there are other reasons), the state itself, as the people's sovereign instrumental entity, must safeguard the free exercise of rights and liberties through one of its machines, amongst others, the police. In that framework (Rousseaunian, by the way) the police must be the object of control by the state (understood here not as nation-state but as a public administration), and within the state mainly as part of the executive power, since in our modern constitutions police forces are organically under it in most cases.

Whether they are under municipalities, federal states or regions, or nation-states (federal or supra-regional), police forces must always be accountable to the administration first and foremost. There are control mechanisms that range from placing a civilian (not a member of the police force) in charge of them to create control and disciplinary committees made up of high functionary officers, or magistrates charged with purging responsibilities at a higher level to that of the simple disciplinary proceedings. This is how it was done, for instance, in Belgium with the application of the Loi organique du controle des services de police et des renseignements of 18 July 1991, that set up (Art. 1) a permanent control committee for police services and another one on information services.

Legitimates State 4 of ... Police ► Citizen Safeguards executor of benefits deman a e to thed bl State

free exercise of rights and liberties

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Police and Legislative Power

Generally, the legislative power exercises an a priori control capacity by passing laws that can limit or restrict police powers. There is also the possibility of setting up parliamentary commissions, often as a con-sequence of some specific case that has generated serious social alarm or is the outcome of some relevant police mistake or abuse. The idea, then, is to ascertain the facts a posteriori and with no significant continuity. They debate and set liabilities regarding police actions and/or the solutions that the government has given to them. In that sense it is an institution that it is legitimated by the fact that it is an elective power.

Depending on what country, its efficacy is more or less real, but its capacity of having direct control is rather limited. In most parliaments in Europe there are justice and interior commissions, but their role has mainly to do with producing regulations, although it must be understood that, in that sense, good control begins by enacting good regulations.

The European Parliament, despite it not being a legislative power in the full and traditional sense of that word in Western democracies, has often exercised a critical role on some police malfunction, especially through its Commission for Public Liberties and the Matters of the Home Office. The reform of the Union Treaty of Amsterdam lays the foundation for thinking that in future the European Parliament may acquire greater powers and play a role similar to that of the state parliaments.

Police and Justice

As stated before in relation to judiciary police aspects, judges or prosecutors are usually the ones who control the activities of the police officers at their disposal. Such a capacity encompasses everything from the capacity to control and apply direct sanctions, to the possibility of claiming from the executive such a sanction in the case when the dependency is only functional and the executive maintains the organic and statutory dependency of the police in judiciary duties (as is the case in Spain and the majority of European countries). But the main judiciary control instrument relies upon the sanctioning capacity of the courts. The penal as well as the administrative and civil areas offer the possibility that the judiciary can sanction police activity or behaviour.

Concerning European examples, such control mechanisms are, up to now, practically non-existent. This is due to the underdevelopment of a justice space in relation to the police space. Nevertheless, we should point out the excellent subsidiary work done by the European Court of Human Rights, with a notable corpus onjurisprudence (Duffy 1997) and the efforts

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of the Justice Court of the European Community, which has assumed the role of protector of the fundamental rights in the Community (see verdicts such as Stauder 12-11-99, Internationale Handellgesellschaft 17-12-70, Nold 14-5-74, Hauer 13-12-79, etc.).

Police and Citizens

As seen above, police forces have the capacity to restrict rights and liberties, but they can only do it legitimately i£

- they do it on behalf of safeguarding those rights and liberties of other citizens with a higher right;

- they do it within the constitutional and legal framework in force; - they do it subordinating efficacy to those rights and liberties, and never

opposing efficacy to them.

Faced with the situation where any of those premises are infringed, citizens must have the adequate channels for complaint, so that the state, whom the police serve, can verify the claim and sanction it if this be the case. Citizens must be informed about the result of such proceedings. Because of the scheme (see Figure 1), there is no chance of a direct and efficient control by citizens on the police unless it is mediated by the state. This is of no object to some NGOs or other citizen associations who set up reporting watches, as is the case of Statewatch, where they fulfil their role of indirect controllers.

Other Control Means and Instances

The Discretionary Power of the Police and Its Control

In order to carry out their duties, the police need some decision-making independence, a selecting and discriminating capacity, with risks that we have already studied. How to adapt their behaviour to the regulating framework must be decided on the job and often in a very short space of time. In such situations, the only efficient control system is self-control, and this can only be assumed and induced starting with the right learning - training - and from the right corporate parameters: that is to say, from a socio-professional environment adapted to the ethical perceptions of the given moment.

There will certainly be other a posteriori control mechanisms, but at any rate, when the potential mistake or damage has occurred. Therefore, as immediate and a priori control measures, only the internalising of behaviour through training, deontology and corporate criteria (learning